The Orange County Board of Supervisors shot down Sheriff Sandra Hutchens’ plan to open up the county’s successful electronic monitoring system—which is already being used to monitor those serving time for misdemeanors—to include some inmates serving time for low-risk, non-violent felonies. By releasing certain low-level felons, Hutchens intended to prevent overcrowding in the OC jail system.

“I understand they need to find an alternative to incarceration, and I appreciate the sheriff’s efforts,” Supervisor Janet Nguyen said Tuesday. “But I’m still uncomfortable allowing felons to be out on the street.”

The move came as the county, like many jurisdictions across the state, grapples with a ballooning jail population and scant resources to house inmates.

Sheriff Sandra Hutchens said her department has struggled to accommodate an influx of inmates from a variety of sources…

Hutchens said there are about 900 more inmates in Orange County’s system as a result of the realignment.

[SNIP]

This week, Hutchens said those home-monitoring programs have been successful, adding that inmates who are being monitored electronically are still technically in custody.

Assistant Sheriff Lee Trujillo told the board Tuesday that the only inmates who would have been eligible for electronic monitoring are “low-risk” felons — those who are nonviolent, with limited criminal records and just days remaining on their sentences.

(Our new LA Sheriff John Scott is on loan from the Orange County Sheriff’s Dept., and will be returning to his position as OC’s Undersheriff when our permanent LASD leader is elected.)

OFFICERS WHO MISTAKENLY SHOT AT TWO WOMEN DURING DORNER MANHUNT WILL RETURN TO THEIR JOBS

The eight officers who fired over 100 rounds at two women in a pickup truck during the Christopher Dorner manhunt last February will return to the field after they receive additional training, according to LAPD Chief Charlie Beck.

Both the civilian police commission and Chief Beck found that the shooting (which injured both women) violated department policy, but no disciplinary action will be taken against the officers involved.

The commission also found the department to be at fault in the incident. President of the Los Angeles Police Protective League, Tyler Izen, says the officers were “placed into a highly unreasonable and unusually difficult position.”

“I have confidence in their abilities as LAPD officers to continue to do their jobs in the same capacity they had been assigned,” Beck said in a department message to officers obtained Wednesday night by The Associated Press. “In the end, we as an organization can learn from this incident and from the individuals involved.”

Both the chief and an independent commission found the 2013 shooting that injured two women violated department policy. The seven officers and one sergeant could have faced penalties including being fired.

Other discipline not outlined in the chief’s message could be handed down, police Lt. Andrew Neiman said, but department policy prevents him from discussing it.

Attorney Glen Jonas, who represented the two women who won a $4.2 million settlement from the city, said he was concerned by the chief’s decision not to terminate any of the eight officers.

“If either of the women had been killed, you can bet your bottom dollar somebody would be fired and maybe prosecuted,” Jonas said. “A stroke of luck, firing more than 100 rounds and missing, should not mean the discipline is lighter.”

CALIFORNIA MAY BAN JUDGES FROM BELONGING TO BOY SCOUTS DUE TO DISCRIMINATION AGAINST GAYS

The California Supreme Court’s ethics committee unanimously recommended the court forbid judges from affiliation with the Boy Scouts of America, based upon the Boy Scouts’ ban on LGBT leaders. California prohibits judges from being a part of organizations with discriminatory policies, but make an exception for non-profits like the Boy Scouts. The committee will take public comments on the issue until April 15. If the state Supreme Court decide’s to approve the ban, it will go into effect on August 1.

If the court agrees, California will join 21 other states whose judicial ethics codes have antidiscrimination provisions that forbid judges from affiliating with the Boy Scouts.

Banning scout membership would “promote the integrity of the judiciary” and “enhance public confidence in the impartiality of the judiciary,” the ethics committee said Wednesday.

[SNIP]

The panel noted that 22 states, including California, prohibit judges from belonging to organizations that discriminate on the basis of sexual orientation, but only California exempts “nonprofit youth organizations” from that prohibition. The state’s high court, which sets judicial ethics standards, adopted that exemption in 1996 to accommodate judges affiliated with the Boy Scouts.

“Selecting one organization for special treatment is of special concern, especially in light of changes in the law in California and elsewhere prohibiting discrimination on the basis of sexual orientation,” the committee said.

The vote on the Sentinel Offender Services contract was postponed until next Tuesday, November 26.

WHAT IS SENTINEL OFFENDER SERVICES AND WHY IS LA COUNTY OFFERING THEM A CONTRACT—AGAIN?

On Tuesday, November 19, the LA County Board of Supervisors is scheduled to vote on a pending contract to provide an adult electronic monitoring program (or EMP) for offenders, so that some of those who might have served their sentences in jail can instead spend their time at home—with restrictions.

However, in November 2011, Probation and the LA County Sheriff’s Department hoped to expand their collective use of EMP to help better deal with the influx of AB109 inmates that, post realignment, had been landing in the county’s care, not the state’s.

With this in mind, the county began a search for the best firm to replace Sentinel.

An RFP went out on November 16, 2012, and out of a cluster of potential applicants, two finalists emerged—one of them, Sentinel Offender Services. When the smoke cleared this summer, according to the most recent report from Probation Chief Jerry Powers, Sentinel got the highest rating.

And so it was that the brand new EMP provider that the board is slated to approve on Tuesday, turned out to be the old EMP provider.

HOWEVER, TWO RATHER LARGE CAUTIONARY NOTES HAVE EMERGED WITH REGARD TO SENTINEL OFFENDER SERVICES

It turns out there are issues with Sentinel that the Board of Supervisors might want to consider—or at the very least discuss—before it rubber stamps the proposed contract.

Large Cautionary Note Number 1: In June of this year, Orange County Probation found that Sentinel—which was also OC’s provider—had been guilty of what amounts to gross incompetence.

When OC Probation notified the company of the problems it had discovered, Sentinel assured probation officials that the people responsible for the issue had been reassigned or let go.

Most of the failures in the units appear to have been discovered by probation officials June 4, when deputy probation officers and supervisors reviewed the tracking data for 13 convicts wearing ankle devices, a June 13 memo said.

Officers found a number of the units had stopped providing coordinates for days, yet the company never notified officers

In one case, the last location sent by the unit was May 7 – that’s 28 days without a signal even though the devices are supposed to transmit coordinates every 60 seconds.

In another incident, officials found one convict required to use a breath-alcohol testing device failed the test 81 times in a 35-day period, yet probation officials were never notified. After the error was discovered, the convict was arrested for violating the terms of his release.

Documents reviewed by the Register show Sentinel attributed most of the errors to mechanical failures, including water damage of internal computer boards, defective units and “sporadic and insufficient length of battery recharging.”

“Fortunately, these issues were not universal, and there were no absconded clients, but the extent of these reporting failures is greater than we have ever experienced,” a June 27 letter from the company said. “We are confident that these oversights will not occur again.”

But in their report to supervisors, probation officials said problems persisted.

“It was alarming,” [OC Supervisor Todd] Spitzer said in the statement. In a June board meeting, he suggested the board consider issuing a 60-day notice of termination. “These untracked individuals posed an immediate threat to public safety, and I could not just sit back and watch.”

Later OC Probation Department officials also found that the company failed to take photos of participants in the monitoring program, a requirement under their contract.

BUT ORANGE COUNTY ISN’T THE ONLY GROUP THAT HAS HAD SERIOUS PROBLEMS WITH SENTINEL

This brings us to Large Cautionary Note Number 2: In September 2013, the story broke that Sentinel had, on its own, illegally extended the sentences for hundreds—and possibly thousands—of Georgia probationers in order to make extra bucks in the form of fees that probationers were required to pay the company for monitoring them.

(Unlike California, the state of Georgia has contracted with private for profit companies to handle its probation services altogether, not just their EMP.)

In January, Nathan Ryan Mantooth was sentenced to 12 months of probation for an improper lane change by a county judge in Georgia. He was ordered to pay a $420 fine, attend a driver improvement course, and pay a monthly probation supervision fee of $35 to Sentinel Offender Services, a private probation firm. He paid the fee and completed the course within a week of his sentencing. Twice, he went to Sentinel to submit his certificate of completion but was told his name was not yet in the computer. But when he was pulled over two months later for failure to wear a seatbelt, police found an outstanding warrant filed by Sentinel for a probation violation, and took him into custody.

Last week, a Georgia county judge ruled that Sentinel Offender Service had illegally extended the sentence of Mantooth and potentially thousands of others who were required to pay the firm monthly probation fees, and was illegally ordering electronic monitoring for misdemeanor offenders — prohibited by state law — while charging probationers for their own monitoring.

So should LA be concerned about what happened in Georgia, where the system is so different than ours? We think LA should be concerned. The Sentinel that got in trouble in Georgia, is the same Irvine-based company that operates here. Moreover the apparent fraud it was perpetrating on low-income lawbreakers, was not a brief flurry of wrongdoing. To the contrary, it went on over time.

For instance, in 2012 NBC News reported on lawsuits by Georgia probationers against the company that, along with documents obtained by NBC reporters, suggested a history of overcharging and or defrauding probationers going back to 2009, meaning even in the face of a bunch of legal action and bad press, Sentinel was mighty slow to learn its lesson—and didn’t appear to cease and desist with this ethically loathsome behavior until it was absolutely forced to do so in 2013.

MAYBE THERE ARE VERY GOOD REASONS WHY THESE TWO RECENT LARGE-ISH SCANDALS PLAGUING A SINGLE COMPANY AREN’T DEAL BREAKERS FOR LA COUNTY.

But they are big enough red flags that the Supervisors must not rush to vote on the Sentinel contract without asking some very probing questions.

NO CORRELATION BETWEEN RISE IN OFFICER SHOOTINGS AND ASSAULTS ON OFFICERS, SAYS LAPD WATCHDOG

According to Alex Bustamante, the inspector general for the Los Angeles Police Commission, there is no link between the rise in LAPD officer-involved shootings and the reported rise in assaults on officers–a claim Chief Charlie Beck made in November. The findings are detailed in a report Bustamante will present to the commission on Tuesday.

Los Angeles police fired their weapons in 63 incidents last year, a total which marked a roughly 50% increase over the shootings in any of the previous four years, according to the report. Beck has explained the increase by pointing to what the LAPD said was a 22% increase in assaults on officers from 2010 to 2011. Police officials counted 193 such incidents in 2011, which were recorded as assaults with a deadly weapon or attempted murders, according to the report.

“Officer involved shootings are also up — largely in response to these kind of attacks,” Beck told the Police Commission in November.

But the inspector general found several reasons why he said this cause-and-effect relationship wasn’t accurate. For one, from 2007 to last year, the number of assaults on officers fluctuated dramatically from one year to the next. The number of officer-involved shootings, however, remained relatively flat until last year, when they jumped. If there had been a connection between the two, the year-to-year totals should have climbed and dropped in sync, according to the report.

The way the department tracks shootings and assaults on officers also muddied matters, Bustamante found. Attacks on officers are tallied based on the number of officers present when assaults occur. By contrast, the department counts an officer-involved shooting as a single event regardless of how many officers open fire. In an incident in April 2011, for example, in which a suspect shot at police from inside a house, the LAPD counted 16 assaults on officers and one officer-involved shooting, despite the fact that 15 officers fired their weapons.

When Bustamante recalculated last year’s assault total to count the number of incidents instead of officers, he counted 106 attacks — a 45% drop from the department’s total. And, instead of a double-digit increase that Beck had contended, Bustamante said the number of assaults was actually about even from 2010 to 2011.

OC Sheriff, Sandra Hutchens, removed security officers’ ability to carry firearms off-duty and make arrests after she received a notice in May that the officers may not meet the minimum requirements of the state commission on Peace Officers Standards and Training–POST. A union representing the officers said they are planning to sue the OCSD over the sudden gun protocol change.

FYI–LASD spokesperson Steve Whitmore told WitnessLA that their security officers have specific training to carry weapons on duty, but cannot carry off-duty. Regarding arrest powers, Whitmore said that the officers can only make citizens’ arrests–”We ask them to be ‘armed witnesses’.”

The OC Register’s Tony Saavedra has the story on the OC security officers. Here’s a clip:

The state commission on Peace Officers Standards and Training notified Sheriff Sandra Hutchens in May that the department’s 200 special officers may not meet minimum requirements for training. The officers have limited police powers and provide security at John Wayne Airport, county courthouses and county buildings. They undergo four months of academy training, while full deputies undergo six months.

POST also requires that the department notify the agency whenever a deputy or special officer is hired or terminated, which the department has not done with the special officer classification.

In response to the commission’s concerns, Hutchens on Wednesday took away, for the time being, the special officers’ ability to make arrests. Under previous guidelines, the officers were allowed to make misdemeanor arrests if a deputy wasn’t available. Hutchens also sidelined the officers’ ability to write misdemeanor tickets. And Hutchens took away their ability to carry weapons while off duty, suggesting they apply for a concealed weapon permit from the department.

The changes will remain in effect while Hutchens, the commission and the Orange County Employees Association work out a plan to handle the training concerns, said Assistant Sheriff Timothy Board.

LA Times’ Richard Winton has the story on the planned lawsuit. Here’s a clip:

…Jennifer Muir, a spokeswoman for the Orange County Employees Assn., said Hutchens overstepped her power in deciding the officers will no longer carry weapons off duty and directing them to carry a concealed weapons permit if they want to resume doing so.

“We plan to go to court later this week,” Muir said. “It is a matter of officer safety.”

Muir said there is a very real danger that an off-duty officer could come into contact with a suspect they handled while off duty.

NEW ACT TESTING TOOL TO HELP BRIDGE EDUCATION GAP

The ACT testing company–the college entrance exam people–has developed a new tool to assess students’ behavioral and academic abilities across K-12. The testing tool focuses on gaps between compulsory education and skills necessary for success in college and the work force.

ACT, the organization that developed the ACT college-entrance exam, will start testing the tool in the fall. It will be available to schools starting in 2014.The tool tracks students’ career interests, academic performance and progress toward goals. It’s designed to follow students from kindergarten through high school.

Jon Erickson, president of ACT’s education division, said the goal is to identify and address gaps in skills needed for college and the workforce. The assessment combines traditional testing with teacher-led projects to generate an instant, digital score.

A growing number of corrections facilities across the US are surprised to find that inmates who participate in gardening programs are significantly less likely to return to prison than the national average predicts.

The most recent study by the Pew Center for the States and the Association of State Correctional Administrators found the [national] rate of recidivism (percentage of people released from prisons who are rearrested, convicted, or returned to custody within three years) to be 43.3 percent. What may be surprising, however, is that correctional facilities with a few years under their belt with a garden are finding not just reduced recidivism rates, but significantly reduced rates. According to the WorldWatch Institute, Sandusky County Jail in Ohio finds a recidivism rate of only 18 percent from those inmates who participate in its garden program, as opposed to 40 percent for those who don’t. Graduates of the Greenhouse Program at Rikers Island in New York City experience a 5-10 percent recidivism rate, as opposed to 65 percent in the general inmate population. Participants in The Garden Project at the San Francisco County Jail have a 24 percent recidivism rate, rather than 55 percent otherwise.

Jail gardening programs that involve people at even younger ages show promising positive effects in not only reducing recidivism but also helping youth avoid first-time offenses. Sidney Morgan, the Community Works Leader for the Department of Community Justice in Multnomah County, Ore., sees big changes in youth when they work in a garden. Morgan runs Project Sega (which means “to grow”) which provides youth on probation the opportunity to work on a quarter-acre garden to pay restitution for their offenses. Produce from this garden is sold at New Seasons supermarkets in the metro-Portland area, and the participating youth get the opportunity to plant, maintain, harvest from the garden, prep the food, and bring it to market. Morgan says New Seasons will even offer jobs to youth in Project Sega after they are done with probation. Through Project Sega, Morgan claims they learn that they can be successful, and that crime is not their only option.

“I’ve been doing probation work for seven years, and I’ve never seen anything like the reaction and results we get from kids who participate in gardening,” Morgan exclaimed.

STATE SUES OC TO PROTECT SCHOOL MONEY

The State of California filed a lawsuit against Orange County on Thursday to prevent the budget-strapped OC from using education funds ($73.5M worth) to pay other bills, leaving the state to foot the bill for schools. While California would be held to a constitutional requirement for funding K-12, if the court ruled in favor of the OC, community colleges could take a big hit with the loss of county funding.

Ted Guest at The Crime Report writes about a new DOJ and MacArthur Foundation-funded study, “Causes and Consequences of High Rates of Incarceration,” headed by eighteen corrections experts, will study the the nation’s 2.3M prison population (roughly six times that of most other countries). Research will explore possible low-cost, high-social benefit alternatives to current prison policies.

The panel of scholars, chaired by Jeremy Travis, president of John Jay College of Criminal Justice in New York, will examine the reasons for the dramatic increases in U.S. incarceration rates since the 1970s, which have produced one of the world’s highest incarceration levels—with more than 2.3 million people behind bars in U.S. prisons and jails at any time

The topic has been widely discussed and analyzed for years by advocacy groups on the left and right, as well as by individual scholars. But the two-year, $1.5 million project, convened by the National Research Council (part of the National Academy of Sciences) represents the first time in recent memory that these issues have been subject to wide-ranging, cross-disciplinary research.

“It now is time to review the state of knowledge—to look at the causes of the high rate of incarceration and the consequences for society,” said Travis, author of But They All Came Back: Facing the Challenges of Prisoner Reentry (2005).

Two Fullerton police officers charged in the death of a homeless man made their first court appearance Wednesday afternoon, and one was set to be released on bail.

Orange County Dist. Atty. Tony Rackauckas took the unusual step of appearing in person for the arraignment of Officers Manuel Ramos and Jay Cicinelli, who are charged in the death of Kelly Thomas, 37. Thomas’ father, Ron, also spoke out at Rackauckas’ request during the arraignment.

Cicinelli pleaded not guilty to charges of involuntary manslaughter and the use of excessive force. He posted $25,000 bail and was slated to be released Wednesday.

In a separate article LAT’s reporters Richard Winton and Abby Sewell write about how DA Rackauckas told those at a news conference how Kelly Thomas had begged for his life only to be pummeled and tased further.

Rackauckas gave a painfully detailed narrative of the July 5 events leading up to Thomas’ death -– details that he said resulted in second-degree murder and manslaughter charges being filed against two police officers.

Rackauckas said Officer Manuel Ramos put latex gloves on his hands and brandished a fist at Thomas. Then, Rackauckas said, the officer, in a “menacing” manner, threatened Thomas: “These fists are ready to F you up.”

The OC Weekly’s reporter Scott Moxley, who has been extremely critical of the Orange County District Attorney over the years, reported that the press conference was Rackauckas’s “finest moment.”

At today’s press conference, the DA seemed to finally fit the job, both in terms of decision-making and style. He didn’t stutter. He didn’t pause for an inordinate amount of time to think up dubious answers. He didn’t run from hard questions. He didn’t use cheap props. He was clearly comfortable and in command. There’s no doubt he believes the severity of the charges are justified.

“In Orange County, we generally trust our law enforcement and with good reason,” he declared. “[But] all people in this great country of ours have a constitutional right to be free from the imposition of unlawful and excessive force under the color of law…”

NBC said that Rackauckas may try the case himself, and is now listed as the attorney of record. Much of the press conference may be viewed here.

EXCELLENT STORY ON THE DIFFICULTIES OF BRINGING CHARGES AGAINST POLICE OFFICERS

Murder charges against on-duty police officers — such as the one announced by Orange County prosecutors in the Fullerton beating case — are rarely filed, and successful prosecutions in such cases are almost unheard of in California.

Legal experts said jurors who are naturally sympathetic toward law enforcement are not easily persuaded that an officer has committed the ultimate crime, even after seeing video of the death.

Ira Salzman, who has represented police officers, said defense attorneys in Orange County will have the added benefit of jurors who look favorably toward law enforcement and can make a forceful argument that police had the legal right to use force against a non-complying suspect.

Investigators interviewed more than 150 witnesses, analyzed video and reviewed stacks of documents as part of an intensive 11-week investigation leading up to the decision to charge Officer Manuel Ramos with second-degree murder in the July 10 death of a mentally ill homeless man.

But to obtain a murder conviction, Orange County prosecutors will have to convince jurors that Ramos intended to kill Kelly Thomas or acted with a conscious disregard for life.

COINCIDENTALLY, TWO MD POLICE OFFICERS WERE INDICTED TUESDAY FOR A BEATING OF A U OF MARYLAND STUDENT CAUGHT ON VIDEO

Both the FBI and the Orange County district attorney’s office are investigating the incident, and the case has generated an emotional response from residents of the college town who are demanding answers from the police department.

Passengers boarded an Orange County transit bus on the night of July 5 with disturbing stories of a violent altercation they had witnessed between police and a homeless man at the train depot.

“The cops are kicking this poor guy over there. All these cops,” one woman told the bus driver in a conversation captured on a grainy bus surveillance tape.

In a significant victory for the So Cal ACLU, on Tuesday, a federal judge ruled that Orange County District Attorney Tony Rackauckas and the City of Orange Police Department had violated the Constitutional rights of more than 60 people by enforcing a highly restrictive gang injunction against them, without ever giving those same individuals a hearing to determine whether or not they were actually gang members.

The circumstances behind the case began in late March 2009 when OC DA Rackauckas filed an injunction against a gang known as Orange Varrio Cypress, or OVC, which generally claims territory in the traditionally Mexican American area of the City of Orange known as Barrio Cypress.

Functionally, a gang injunction works like a restraining order. But, instead of barring contact with an individual, it bans certain activities by purported members of a particular group named in the order.

Here’s a clip from the post I wrote back in 2009 (here and here) that will give you a little more of the backstory:

The OVC injunction demarcates a 3.8-square-mile area the DA has designated as the Safety Zone. This section of Orange, which amounts to 16 percent of the city, is located mostly in Orange’s downtown sector, west of the 55 Freeway. In the Safety Zone, alleged gang members are not allowed to be in the presence of anyone else who is allegedly a gang member. They are also barred from drinking alcohol, or to being nearby to anyone else who is drinking alcohol, or to wearing “gang attire, ” which is a woozy term that means certain brands and certain colors. In addition, those named in the injunction must obey a 10 p.m. curfew.

And there are other prohibitions. Among the most bizarre is the rule that alleged OVC gang members named are forbidden to stand in front of a famous local mural painted by the highly respected artist Emigdio Vasquez. It seems that the police have deemed the mural as OVC’s gang “flag.”

If those named in the injunction violate any of these restrictions, they face six months in jail and a hefty fine.

With previous Orange County gang injunctions, there had sometimes been minor protests, but they had come to nothing.

This time community members and activists seemed far more determined in their objections, saying that the police at the DA had cast an absurdly wide net that amounted to racial profiling. It was, they said, making the lives of the innocent people named to the list….. simply impossible.

Around sixty of the 100 or so people named on the injunction as suspected gang members appeared or tried to appear in court to argue that they were not, in fact, gang members. At first prosecutors dismissed those 60+ from the case and obtained the injunction by default only against the gang and those individuals who never appeared in court.

But soon afterward, the District Attorney and police began serving the injunction on the very same people who had been dismissed from the case, on grounds that they were suspected of being part of the OVC gang.

The reasons why various individuals had been labeled as gang members were often preposterously flimsy. One person was listed as a gangster because an officer had once seen him in clothing that the cop deemed to be gang attire, although no one could say precisely what that clothing was. In another case, an individual was seen talking with gang members who also happened to be neighbors and childhood friends.

The restrictions imposed on those named in the injunction made normal daily life difficult. For example, in a couple of instances, sets of brothers could not socialize with each other outside of their homes for fear of being arrested.

U.S. District Court Judge Valerie Baker Fairbank noted other effects of the order in her ruling:

“When the grandfather of one set of [of brothers] had a stroke and was taken to a hospital in the Safety Zone in the middle of the night, their mother was forced to decide whether to permit the brothers to visit the publicly accessible hospital, an act that would violate both the curfew and association provisions of the Order.

To get a better idea of how the injunction worked, the judge spent an hour touring the area it covered before she ruled.

Afterward she wrote “….by subjecting Plaintiffs to the Order, Defendants have imposed a significant restraint on their liberties.

And then finally:

For the reasons set forth above, the court issues an injunction barring Defendants from enforcing the Order against the Plaintiffs.

The ACLU attorneys were thrilled:

“The ruing shows that police and prosecutors cannot take it on themselves to throw out someone’s most basic civil liberties, just because they think that the person might be a gang member,” said Peter Bibring, staff attorney for the So Cal ACLU.

“What the court recognized,” said Bibring ” is that gang injunctions are a big deal. They apply significant restrictions to people’s lives. And police and prosecutors should not be given sole discretion to impose them on an individual without some kind of additional procedural protections.”

Despite the favorable ruling, Bibring admitted that the legal battle over the OC injunction is likely not over.

(OC Weekly columnist Gustavo Arellano standing in front of mural by artist Emigdio Vasquez, which was weirdly deemed forbidden territory to anyone named in the OVC gang injunction.)
When we left off earlier this week, Orange County District Attorney Tony Rackauckas designated 115 people in his proposed gang injunction as among the “most active participants in” the Orange Varrio Cypress gang.

Rackauckas said that the injunction was necessary because the gang— of which these 115 were purportedly hard core members—was guilty of all manner of heinous crimes.

(Nevermind that community members continued to protest that the Chapman College students who came over drunk from nearby Fullerton, were causing them way more regular trouble that the OVC homeboys.)

Usually when a DA—either in LA or in Orange County-–names people to a gang injunction , that’s the end of it.

This time, however, the ACLU got into the mix and agreed to represent five of the 62 people attempting to contest their inclusion.

The idea, the ACLU attorneys hoped, was to use the five to suggest to the presiding Superior Court judge that maybe he ought to take a look at the rest to see if they were really the dangerous gangsters the DA advertised them to be. The ACLU limited themselves to five because representation is time consuming and expensive,and the staff attorneys figured five was better than none.

The case marks one of the few times that individuals named in a gang injunction have been able to obtain legal representation and defend themselves against the charge they are gang members and should have their activities severely restricted, said the ACLU’s LA Staff Attorney Peter Bibring.

The five that the ACLU chose to represent were single mother, Erika Aranda, (see Tuesday’s post for Aranda’s story), an unnamed 16-year-old boy, and three middle-aged brothers: Patrick DeHerrera, 43, Roy DeHerrera, 46, and Louis DeHerrera, 32.

Patrick, the 43-year-old, admits he was once was an OVC gang member, “when I was young.” Patrick has also done time—but says he long ago left the gang behind and had worked for years as a carpenter until the pinched nerve in his back put him on permanent disability. Now Patrick lives inside the DA’s designated Safety Zone with his two aging parents—a father who is blind, and a diabetic mother who has recently had a debilitating stroke.

“Because I live and shop in the Safety Zone,” said Patrick, “I will become a prisoner in my own home even though I am not on parole or probation. I fear that I will be targeted by the police and will be accused of violating the terms of the preliminary injunction by engaging in day-to-day activities. There are many restaurants, stores, and gas stations, for instance, in the Safety Zone where I could run into someone named in the injunction and then be arrested for associating with ‘gang members.’ I also take my kids to the street fair at the Orange Plaza and the carnival at Holy Family Catholic Church, both of which are located in the Safety Zone. I would be afraid of going those places and running into people named in the injunction.”

Roy the oldest of the three is a fork lift operator who lives with his wife and his kids just outside the Safety Zone, but frequently goes in to see his brothers and his parents, and to take his kids to and from the library and to see their grandparents. Roy also goes to church with his mother, tries to help kids in the area by teaching them boxing and felt similarly worried.

Ditto for Louis, the 32-year-old, who is studying to be an X-Ray Technician/Medical Assistant and is currently completing his clinical internship at Golden West Medical Clinic in Anaheim. After his graduation in August, Louis says he wants to attend Kaplan University, in North Hollywood, to become a Certified Radiologist Technician, and then, if he can afford it, continue his education further after that, doing the radiology work while he studies.

Louis has letters from his teachers to back up his claims.

Despite Patrick’s youthful gang membership, all three brothers say they are not gang members now, not in any way, shape or form.
On Thursday, the judge agreed and refused to include the ACLU’s five clients in the preliminary injunction. Then, while he was at it, the judge decided to exclude the other 57 who contested their status.

And what did the DA do when these dangerous people were struck from the injunction? Speak passionately about the clear and present danger they presented to the community?

Nope. He dismissed all 62 from his own list

Which makes his original accusations against them look a teensy-weeny bit suspect.

“The district attorney would not have dismissed our clients — and so many others – if there was any evidence that they were dangerous,” said Belinda Escobosa Helzer, a staff attorney for the ACLU’s Orange County Office. “Their dismissal undermines his earlier claims that the people named in the injunction were all active and dangerous members of a gang.”

LA’s Peter Bibring agreed. “This decision shows that the district attorney’s guilt-by-association strategy won?t stand up in court. By dropping the case against anyone who offered a defense, the district attorney has conceded the weakness of his case and that he cast too wide a net.”

Yep. That would be my read.

As commenter Linda said on the earlier thread when she heard the news, Thursday is a “good day for the Constitution.”

In late March of this year, Orange County District Attorney Tony Rackauckas filed an injunction against a gang known as Orange Varrio Cypress, or OVC, a group that generally claims territory in the traditionally Mexican American area of the city Orange known as Barrio Cypress. It is the sixth such injunction filed in Orange County in the last 2 1/2 years.

Unlike some of my fellow liberal friends, I am not against gang injunctions per se. They are a tool, and at times a very useful tool in giving a community breathing room when gangs are running roughshod. But as with a hammer, whether the tool of gang injunctions is used for constructive purposes or as a clumsy bludgeon, depends on the skill with which it is wielded.

In the case of the OVC injunction it appears that the tool is being wielded discouragingly poorly.
Functionally, a gang injunction works like a restraining order. But, instead of barring contact with an individual, it bans certain activities by purported members of a particular group named in the order.

The OVC injunction demarcates a 3.8-square-mile area the DA has designated as the Safety Zone. This section of Orange, which amounts to 16 percent of the city, is located mostly in Orange’s downtown sector, west of the 55 Freeway. In the Safety Zone, alleged gang members are not allowed to be in the presence of anyone else who is allegedly a gang member, or to drink alcohol, or to be nearby to anyone else who is drinking alcohol, or to wear “gang attire, ” which is a woozy term that means certain brands and certain colors. In addition, those named in the injunction must obey a 10 p.m. curfew.

And there are other prohibitions. Among the most bizarre is the rule that alleged OVC gang members named are forbidden to stand in front of a famous local mural painted by the highly respected artist Emigdio Vasquez. It seems that the police have deemed the mural as OVC’s gang “flag.”

If those named in the injunction violate any of these restrictions, they face six months in jail and a hefty fine.
With previous Orange County gang injunctions, there had sometimes been minor protests, but they had come to nothing.

This time community members and activists seemed far more determined in their objections, saying that the police at the DA had cast an absurdly wide net that amounted to racial profiling. It was, they said, making the lives of the innocent people named to the list….. simply impossible.

Among the problems with poorly calibrated gang injunctions is the fact that, when mistakes are made, they are extremely difficult to rectify. If one is not a gang member, but is wrongly named in the injunction, there is no way off the list short of hiring a private attorney to contest one’s inclusion. And even if one can afford an attorney, there is no guarantee that contesting will work, as one is stuck with the task of having to prove a negative.

One of those named on the OVC list was Erika Aranda, a 21-year-old single mother who lives with her family and her young daughter in the so-called Safety Zone, but says she has never claimed gang membership, or participated in gang activity. She has never been convicted of a crime. She has, however, grown up around those who are admitted gang members and has sometimes, according to police, been seen talking on the street with these childhood friends who still live in the neighborhood. Plus her uncle—a drug addict— is a old time OVC gang member who lives with the family intermittently, “whenever he’s not locked up,” she says.

That was enough for the DA, who named Aranda as a gang participant, thus subject to all the restrictions. For instance, this meant that the young mother, who had recently been laid off from her job at the Dairy Queen, would be unable to continue with the job training classes she had been attending at the The Bridge, a non-profit also located in the Safety Zone. It seemed that, among its services, The Bridge counseled and provided classes to at-risk youth, some of whom were listed in the injunction. So just by being in the building, Aranda would be in violation of the order.

Nor could Aranda ask a neighborhood friend to drive her to a job interview (she doesn’t have a car), if that friend happened to be on the list or had a family member on the list.

And, if the police wanted to push things, it meant she could not use public transportation if someone on the injunction list was also taking the same bus.

“Because I live and shop in the Safety Zone, I will become a prisoner in my own home even though I am not on parole or probation,” Aranda wrote in a statement protesting her inclusion in the injunction. “I fear that I will be targeted by the police and will be accused of violating the terms of the preliminary injunction by engaging in routine, day-to-day activities.”

Given the flimsy “proof” of gang membership the DA had compiled to justify her listing and that of some of the others who claim they were named wrongly, Aranda’s fear doesn’t seem outlandish.

As if to validate her anxiety, on Easter Sunday, police arrested a teenager named in the injunction for nothing more than standing with a friend (not named in the injunction) outside the apartment building where he lived with his mother, which happened to be located right next to the forbidden Emigdio Vasquez mural.

At their wits end, the community group went to the ACLU, which finally agreed to represent five of the people named in the injunction, Aranda among them.
“The ease with which the District Attorney’s Office embraced this sweeping approach is troubling, and should make the public very nervous,” said Belinda Escobosa Helzer, one of the two ACLU staff attorneys who would be working the case. “This haphazard, catch-all approach to cracking down on gangs ensnares innocent victims and threatens to take away their most basic freedoms — associating with family and friends.”

PART II TOMORROW THURSDAY

Photo of Orange County District Attorney Tony Rackauckas from the OC Weekly.

Those of us who teach journalism at USC , if we checked our email last night, found the following message from Dean Ernest Wilson, the new-ish head of the Annenberg School of Communication at USC.

As you may already know, I have been appointed to the team advising President-Elect Barack Obama as he assembles his new administration. As this is an outstanding opportunity to help shape future public policy in communication, media and technology, I am delighted to serve our country in this capacity.

I will be wearing several hats during the presidential transition. I will be leading a team reviewing America’s international broadcasting services, including the Voice of America and the Broadcasting Board of Governors, and I will advise the transition team working with the U.S. Department of State on public diplomacy issues.

Effective Friday, December 5, I will take an official leave of absence from my position as dean of the USC Annenberg School until the end of the calendar year in order to serve on the Presidential Transition Team as a private citizen.

Dean Ernie is a good guy, and a smart guy. So…..what do we think? We think, Hey, Cool! This is good.